Hearing officer sides with FAA over jet ban

LONG BEACH — Less than a week after a U.S. appellate judge upheld an injunction restricting City Hall from enforcing its ban on jets, it looks like the battle with the Federal Aviation Administration could very well end up back in federal court.

That’s the likely scenario facing City Hall after the FAA’s hearing officer ruled on Thursday that the 2008 ordinance prohibiting categories C and D jets from Santa Monica Airport put the municipality in violation of its federal obligations, forcing city officials to appeal that decision to the agency’s associate administrator for policy, planning and the environment, whom they expect will make the same judgment.

City Hall is then expected to take the matter to the federal appeals court.

“We were speculating what the decision would look like and we were pretty dead on,” Ivan Campbell, deputy city attorney, said. “It’s a split decision where out of the five main issues, the city won on two of them.

“The three the city lost on happened to be the longest and most detrimental issues.”

The March hearing in Long Beach was held in response to the FAA’s administrative review of the jet ban last year, concluding that the ordinance discriminates against certain classes of aeronautical activities, discriminates in the operation of the airport, and discriminates in a manner that is inconsistent with its 1984 agreement with the FAA among other issues.

The hearing officer sided with the FAA on those three points, but did not on a fourth, finding that the ordinance does not grant an exclusive right to operate categories A and B aircraft, which the FAA contended it did.

Which side prevailed on the fifth point, which concerns whether City Hall could regulate on matters of federal airspace because of preemption by federal authorities, seems to be up for debate.

“The hearing officer was saying that he does not have jurisdiction to decide because it’s not decided in the part 16 (administrative hearing),” Campbell said regarding the preemption issue. “He said its better for the federal courts.

“That was our argument to say it does not apply.”

Runway safety has long been a concern for residents who live near Santa Monica Airport, whose runway sits within 300 miles of homes from both ends. Residents have expressed fears that a jet will one day overshoot the runway and land on homes. The FAA has presented several safety options, including installing concrete blocks meant to give way under the weight of an aircraft. The City Council denied the recommendations as being insufficient, leading to the adoption of the ordinance.

Ian Gregor, the FAA spokesman, said the agency remains ready, willing and able to institute any of these proposals.

He notes that the decision by the hearing officer is not final. That decision will be made by the associate administrator.

“This decision supports our initial determination that the jet ban violates the city’s obligations to the federal government, but it does not end the FAA’s administrative proceedings on the jet ban ordinance,” he said. “Rather, it is a step in an ongoing process.”

The ruling by the hearing officer didn’t come as a surprise to Susan Hartley, a Sunset Park resident and former vice chairwoman of the Airport Commission.

“It is my understanding that it’s very rare for the FAA hearing officer to rule against the FAA,” she said. “I know my neighbors had a lot of hopes about this and I definitely think that given the danger to the community, both the environment and the prospect of a jet crash, that the city needs to take all the appellate steps necessary.”

Campbell notes that even if City Hall were to prevail on all five counts during the hearing, that the associate administrator could theoretically reject that decision and assert their own legal conclusion and the FAA could issue a cease and desist order.

“The bottom line here is that however the hearing officer decision would have went, the city would be precluded from going forward with the ordinance,” he said. “There were multiple restraints and effects to prevent the city from enforcing this ordinance, including the current preliminary injunction.”

The injunction was issued by U.S. District Court Judge George Wu shortly after the ordinance was passed last year. The injunction was appealed and upheld by the Ninth Circuit Court of Appeals last Friday.

The 116-page decision notes that while “no party belittles the concern for neighborhood or the citizens who live there,” that few accidents have occurred at the airport, none of which involved categories C and D aircraft.

“Further, from 1988 to 2006, there were 156 to 223 incident reports with regard to A and B aircraft at the airport, but none of which identified the runway length or runway safety areas at SMO as an issue,” the decision said.

Residents have said overruns have taken place at other airports, including in South Carolina where four people were killed last fall.